In re the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case No. 5128

Hearing Date: February 22, 2001
Decision Issued: March 1, 2001

On December 8, 2000, Grievant was issued a Group II Written Notice of disciplinary action with a suspension from December 11, 2000 to December 23, 2000 for:

The Written Notice also states regarding mitigating circumstances:

On January 5, 2001, Grievant timely filed a grievance to challenge the disciplinary action. The outcome of the Third Resolution Step was not satisfactory to the Grievant and he requested a hearing. On January 30, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On February 22, 2001, a hearing was held at the Agency’s regional office.

Grievant
Grievant’s Representative
Human Resource Officer
Legal Assistant Advocate
Administrative Officer
Licensed Practical Nurse
Investigator
Facility Director

Whether Grievant should receive a Group II Written Notice of disciplinary action with suspension from December 11, 2000 to December 23, 2000.

The burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary action against the Grievant was warranted and appropriate under the circumstances. Grievance Procedure Manual ("GPM") § 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

One of the Facility’s responsibilities is to treat patients who have been charged with crimes but have been determined to be incompetent to stand trial or found not guilty by reason of insanity. The Facility staff refer to these patients as their clients. Grievant has been employed by the Agency as a Forensic Mental Health Technician for approximately 17 years.

On November 22, 2000, Grievant was working in Building 96 when he encountered an aggressive and hostile Client. Grievant was seated at a table and engaged in paperwork requiring his immediate attention. The Client sat at a table next to the Grievant’s table and asked the Grievant to put away the Client’s CD player in a secure location. Grievant responded that he would be willing to assist the Client in a few minutes once he finished his work or the Client could give the item to the Grievant and the Grievant would assume responsibility for the item and make sure it later was secured properly. The Client did not like Grievant’s response and began cursing, shouting, and calling Grievant numerous profane names. The Client threatened to report Grievant to the patient advocate and to Grievant’s supervisor. Grievant responded to the Client and then left the area and went into another room. Grievant’s response forms the basis of this appeal.

The Client filed a complaint against the Grievant alleging client abuse. An abuse investigation began on November 27, 2000, after the Thanksgiving holiday. Grievant was suspended during the period of investigation in accordance with Agency policy. The Investigator interviewed the Client and three other clients who were in the room where the altercation occurred. The Client stated that the Grievant said "I don’t give a f—k if you report me." Client S stated Grievant said, "I don’t give a f—k if you report me." Client P stated Grievant said, "he did not give a f—k, who was going to believe him." Client W stated Grievant said, "he did not give a f—k who he called or told." None of the clients were called to testify as witnesses.

The Investigator took statements from other staff including a Licensed Practical Nurse and the Grievant and concluded that Grievant was "verbally abusive toward [the Client] by stating ‘I don’t give a f—k." (Agency Exhibit 1). The Investigator believed the client’s accounts were the most accurate representations of what happened.

The Investigator’s report was submitted to the Agency’s Richmond office for a determination of whether client abuse occurred. Agency executives at the Richmond office concluded that no client abuse occurred and the matter was returned to the Facility Director for disposition. The Facility Director believed Grievant had engaged in an inappropriate/non-therapeutic interaction with a client and issued Grievant a Group II Written Notice in accordance with the Standards of Conduct specified in the Agency’s handbook. (Agency’s Exhibit 7). Grievant had received a copy of the handbook. (Agency Exhibit 8).

Grievant met with the Facility Director as the second step of the grievance process. Following the meeting, the Director responded, in part:

(Agency Exhibit 4).

During the altercation between the Client and the Grievant, a Licensed Practical Nurse was located approximately 25 feet from the Grievant and could hear the conversation. The Licensed Practical Nurse testified she heard Grievant speak in a normal voice and say, "I don’t give a" and then the Grievant paused. The Licensed Practical Nurse was adamant that Grievant did not complete the sentence with "f—k".

The Licensed Practical Nursing also testified that the Client was not yelling but was speaking very loudly and it appeared to her that the Client wanted everyone in the room to know what he was saying. According to the Licensed Practical Nurse, the Client responded to the Grievant by saying, "You don’t give a f—k! That’s what you was gonna say. (Now addressing the other patients in the room) Did y’all hear that!"

An inappropriate/non-therapeutic interaction with a client is a Group II offense under the Agency’s handbook. (Agency Exhibit 7). Directing curse words at a client may rise, under certain circumstances, to the level of an inappropriate/non-therapeutic client interaction. It is not necessary to address whether this instance rises to that level since the Agency has not met its burden of proving that the Grievant used the word "f—k" in his interaction with the Client.

The most reliable testimony regarding what the Grievant said comes from the Licensed Practical Nurse. Her testimony supports the Grievant’s testimony that he said "I don’t give a …." without including the word "f—k". More importantly, she clearly heard the Client state what the Client believed the Grievant was going to say but did not say. The inference is obvious – the Client’s spontaneous response shows the Grievant stopped himself without saying the word "f—k".

The Agency contends that the ease with which the Grievant used the phrase "f—k it" during his meeting with the Facility Director shows it is more likely than not that he said "I don’t give a f—k" to the Client. Although the Grievant disputes that he made such a reference to the Facility Director, the Facility Director would have little motive for creating a false story and his testimony seemed more than credible. The Grievant’s propensity to use "f—k" in his daily discourse, however, is not sufficient to contradict the testimony of the Licensed Practical Nurse.

The Agency contends the statements of the clients establish Grievant’s culpability. It is difficult to rely on the statements of the clients for several reasons. First, clients typically are taking psychotropic and other medications that may affect their perceptions and recollections. Second, none of the clients appeared as witnesses at the hearing and their statements could not be tested by cross-examination. And third, many of the clients in Building 96 were at the Facility because a Court concluded they may have committed serious crimes and they needed to receive mental health treatment. Thus, their trustworthiness is not known.

Although the Grievant’s incomplete sentence is not a Group II offense, the questions arises as to whether his statement is a lesser offense. The testimony revealed that the Client was especially caustic towards the Grievant. For example, the Client referred to the Grievant as a "God d—m, mother f—cker" and a "chocolate bit-h". It is understandable that the Grievant may have had some reaction to the Client. The Grievant expressed his frustration with the Client but caught himself before cursing and then quickly removed himself from the room as he had been trained to do. The Grievant’s behavior does not rise to the level of a Group I offense in light of the circumstances and his reaction to them. The Hearing Officer, however, recommends that the Agency, in its sole discretion, consider whether the Grievant should be counseled as to how to respond to clients who are especially hostile to the Grievant.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action with suspension is rescinded. The Agency is directed to provide the Grievant with back pay for the period of suspension less any interim earnings that the employee received during the period of suspension and credit for annual and sick leave that the employee did not otherwise accrue. GPM § 5.9(a)(3). Policies and Procedures Manual, Standards of Conduct, Policy No. 1.60(IX)(B)(2).

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

A hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

Carl Wilson Schmidt, Esq.
Hearing Officer